Director General, Department of Fair Trading v Sharp [2001] NSWSC 721

New South Wales Supreme Court

CITATION : Director General, Department of Fair Trading v Sharp [2001] NSWSC 721 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11652/01 HEARING DATE(S) : 15/08/01; 22/08/01 JUDGMENT DATE : 22 August 2001

PARTIES : Director General, Department of Fair Trading v Christopher Thomas Sharp JUDGMENT OF : Michael Grove J at 1

COUNSEL : D. Thorley (Plaintiff) In person (Defendant) SOLICITORS : D. Catt (Plaintiff) CATCHWORDS : CONTEMPT - MOTOR DEALING - INJUNCTION TO RESTRAIN IN ABSENCE OF LICENCE - CONTINUED TRADING - PENALTY LEGISLATION CITED : Fines Act 1996 Motor Dealers Act 1974 DECISION : Fine Imposed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 22 August 2001

11652/01 - DIRECTOR-GENERAL OF THE DEPARTMENT OF FAIR TRADING v CHRISTOPHER THOMAS SHARP

JUDGMENT

1 HIS HONOUR: This is a proceeding commenced by summons arising out of an order made in this Court on 18 May 1998. The plaintiff, Director-General of the Department of Fair Trading, seeks that the defendant be punished for disobeying the order made on that occasion and invites either committal to prison or fine or both. 2 The rules of Court specify that such an application ought be brought by a motion in the proceedings, however the plaintiff has commenced them by independent summons. Nothing as to validity turns upon this, but insofar as the commencement by summons has increased the costs in any way, I specify now that the increase in costs should not lay at the feet of the defendant. 3 The hearing commenced last week. Despite directions having been given for the parties, including the defendant, to signify their intended evidence by affidavit, the defendant produced no affidavits. He has appeared for himself in these proceedings and in that circumstance I have granted him latitude in relation to the production of evidence. 4 The hearing on the first day involved testimony from two persons, a Mr Garry John West and Mr Raymond Frederick Dyson. These persons have been particularised in an annexure to the summons (setting out a statement of charge) as persons to whom motor vehicles have been sold in circumstance which have demonstrated that the defendant was carrying on the business of a motor dealer without being licensed pursuant to the provisions of the Motor Dealers Act . 5 The witness Mr Dyson was himself a dealer and evidence showed that some six vehicles had been transferred to him by the defendant. Mr West was a man in business in the outer western suburbs of Sydney, who saw about a dozen vehicles displayed for sale at a property near the Northern Road, Kingswood. That property had a fence built around it and as detailed in Mr West's affidavit, he came to contact the defendant and in due course purchased from him one of the vehicles, which was a Toyota commercial vehicle. I should mention in passing that Mr West has been quite satisfied with that particular purchase. 6 It is true that the Form 8 under the Motor Dealers Act specifies the dealer in relation to that vehicle as Pony Express, rather than the defendant personally. It will be necessary to make some reference to that business, but it suffices to say that I am abundantly satisfied to the requisite high standard that Mr Sharp, the defendant, was dealing in motor vehicles in accordance with the particulars of the statement of charge. 7 I mention in passing that although he has claimed that he was acting in some way on behalf of a business known as Pony Express, he has put no evidence before me to suggest that he ever accounted for any of the money received in relation to these sales to that business. What he has said is that he became interested in acquiring that business or, as he put it, salvaging it. The business was initially operated by one Christopher McDermod. 8 On the first day of hearing after giving evidence himself, Mr Sharp said that Mr McDermod would confirm things which he asserted, principal among them being that in respect of the activity relied upon by the plaintiff, he was acting either as agent or at least with the permission of Mr McDermod. I was informed that Mr McDermod, who is presently a resident of central coastal Queensland, would in fact be in Sydney this week and arrangements were made for his attendance today. 9 Although Mr McDermod was technically a witness called by the defendant, his evidence was clearly unfavourable to that party and cross-examination of him was permitted. Be that as it may, it became clear that Mr McDermod disputed that he had ever given the defendant permission to operate under the umbrella of his licence or otherwise. 10 I should record that Mr Sharp had also, on the first day of hearing, suggested that evidence in his favour might be given by a Mr and Mrs Allen, who had something to do with the conduct of the Pony Express business. I abridged time for service of subpoenae and gave leave for these to be issued. In the event, these subpoenae were not served in accordance with requirements. Amongst other things, they were not served until 50 minutes after the expiry time for service in accordance with the abridgment and although the defendant suggested that this was somewhat irrelevant I should point out that on the form of subpoena it expressly states to the recipient that that person need not comply with the subpoena if it is served after 4pm on the specified date. 11 Whilst these may seem like petty rules to the defendant, when citizens are being commanded to leave their home or business and attend Court, precision and attendance to detail is required for the exercise of compulsive power by Courts. 12 It is not necessary to explore this matter further, because after the luncheon adjournment today, whilst Mr McDermod was still giving evidence-in-chief, the defendant asked that the evidence be closed. He did this in circumstances consented to by counsel for the plaintiff by reading a statement which contained a concession of breach of the Court's order, although there was an indication therein that the breach was assertedly unintentional. 13 At the end of the day there is no real contest other than that the plaintiff's allegations have been sustained. The defendant was invited to make submissions and again he described the circumstances in which he was seeking to salvage a business. He has emphasised that he had made an application for a licence, but it is plain that he elected to trade before any such licence had been granted. It is not without significance that prior to these proceedings, the defendant has previously been prosecuted in a Local Court in relation to trading without a licence. That matter is of course not relevant to the proof of breach, but is potentially relevant to punishment. 14 Mr Sharp has pointed out that in relation to the seven cars the subject of the particulars, six of them were on-sold to a dealer and he claims to have sustained a loss thereby and as I have mentioned, the seventh vehicle sold to a nondealer was described by the purchaser as being satisfactory. 15 I am unpersuaded that the breach by Mr Sharp was unintentional. The impression that I have gained is that he regards orders as matters which can be complied with at his own election in accordance with his own wishes from time to time. I should say at the outset, however, that despite my finding that his disregard of the order of the Court was basically contumelious, I do not think his disobedience should be punished by committal to prison. 16 I specifically invited him to put before me matters which might be relevant to the payment of a fine. I am conscious of course of the requirements of s 6 of the Fines Act 1996. Mr Sharp informed me that he was engaged in some property developments, the sale of a factory and the purchase of a hospital. Nothing else was put before me in relation to his current means or assets. I should record that his previous appearance before a Local Court for a prosecution at the instigation of the Director-General of the Department of Fair Trading, I am informed by counsel for the plaintiff, resulted in a fine of $5,100. It is asserted by the plaintiff that this remains unpaid and by the defendant that he has some proceedings on foot seeking to set aside that order. The disobedience of this Court's order was, as I have found, deliberate. 17 The defendant has occupied a considerable amount of Court time in exploring his alleged arrangements with the Pony Express operation. He is not of course to be punished for that, but the length of hearing has, I regret to say, given me the opportunity to form a view about the defendant's attitude to Court orders and indeed the material that he is prepared to put before a Court. 18 Much of his assertion was, of course, entirely contradicted by the evidence of Mr McDermod. I should say that I found Mr McDermod a convincing witness. Mr Sharp frequently put propositions to him which Mr McDermod obviously was reluctant, but forced to contradict. I did not gain the impression that Mr McDermod bore any particular malice or ill will towards the defendant, but was reluctantly telling the truth in relation to the nonexistence of arrangement between them such as had been asserted by the defendant. 19 That brings me to a question as to what I should do concerning the demonstrated contempt. In the absence of greater detail I can only infer from the information that the defendant did put before the Court about his current activities, that he is a person who has available to him means to engage in purchase and sale of commercial properties. The punishment should mark the deliberate flouting of the order of this Court. I take into account that subject to the restriction which I announced earlier concerning independent commencement of these proceedings that is to say independent from the original proceedings, the defendant will be ordered to pay the plaintiff's costs. 20 For the contempt proved and in relation to the statements of charge annexed to the summons filed on 30 May 2001, the defendant is fined $10,000. I order the defendant to pay the plaintiff's costs of the summons. I should explain you to, Mr Sharp, that the Act to which I referred, the Fines Act , provides that you have 28 days in which to pay that fine. Thereafter, if you need any further time, that statute makes provision as to where you should make application in that regard. **********